[OFFICIAL ENGLISH TRANSLATION]
2001-3151(GST)APP
BETWEEN:
ENRICO FERRARA
O/A CARROSSERIE FERRARA,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Application heard on January 18, 2002, at Montréal, Quebec, by
the Honourable Judge P. R. Dussault
Appearances
Agent for the Applicant: Micheline Coutu
Counsel for the Respondent: Josée Fournier
ORDER
Upon application by the agent for the applicant for an extension of time to appeal from an assessment made under the Excise Tax Act for the period from January 1, 1992, to December 31, 1998;
And upon hearing what was alleged by the parties;
The application is dismissed.
Signed at Ottawa, Canada, this 28th day of January 2002.
|
"P. R. Dussault" |
J.T.C.C.
Translation certified true
on this 6th day of May 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
Date: 20020128
Docket: 2001-3151(GST)APP
BETWEEN:
ENRICO FERRARA
O/A CARROSSERIE FERRARA,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Dussault, J.T.C.C.
[1] At issue is an application for an extension of time to appeal from an assessment made under the Excise Tax Act ("the Act") on December 10, 1999, for the period from January 1, 1992, to December 31, 1998.
[2] The respondent's reply to the applicant's application for an extension of time to appeal sets out facts that should be recalled, given the circumstances. Paragraphs 1 to 13 of the reply read as follows:
[TRANSLATION]
1. On December 10, 1999, the Minister issued and mailed to the applicant a notice of reassessment covering the period from January 1, 1992, to December 31, 1998.
2. The applicant did not file with the Minister a notice of objection to the notice of reassessment referred to in the previous paragraph within the time limit prescribed in section 301 of the Excise Tax Act (R.S.C. 1985, c. E-15), as amended (hereinafter "the E.T.A."), which time limit expired on March 9, 2000.
3. Specifically, the applicant, through accountant Micheline Coutu, his agent, filed with the Minister a notice of objection to the notice of reassessment referred to in paragraph 1 of this reply only on March 24, 2000, that is, the 105th day after the day on which the notice of reassessment was mailed;
4. On May 30, 2000, the applicant applied to the Minister for an extension of time to file a notice of objection under section 303 of the E.T.A.
5. On October 13, 2000, in accordance with subsection 303(5) of the E.T.A., the Minister of National Revenue notified the applicant of his decision to grant the application for an extension of time so that the applicant could file a notice of objection to the notice of reassessment referred to in paragraph 1 of this reply.
6. In accordance with subsection 303(6) of the E.T.A., October 13, 2000, is the new date on which the applicant's notice of objection is considered to be filed.
7. On March 28, 2001, after considering the notice of reassessment and in response to the notice of objection, the Minister mailed to the applicant a notice informing him that he was confirming the reassessment in accordance with subsection 301(5) of the E.T.A.
8. The Minister's March 28, 2001, decision also informed the applicant that, if he wished to appeal to the courts from that decision and from the decision confirming the notice of reassessment made under the Act respecting the Québec sales tax, he could refer to the leaflets attached to the decision: "Information on Judicial Recourse" and "How to Appeal to the Tax Court of Canada-GST & Income Tax".
9. On March 28, 2001, the Minister also mailed to accountant Micheline Coutu, the agent for the applicant, copies of the decisions concerning the notice of reassessment referred to in paragraph 1 of this reply and the notice of reassessment made under the Act respecting the Québec sales tax.
10. The applicant did not appeal from that decision to this Court through accountant Micheline Coutu, his agent, within the time limit prescribed in section 306 of the E.T.A., which time limit expired on June 26, 2001.
11. The applicant did not appeal from the decision concerning the notice of reassessment made under the Act respecting the Québec sales tax to the Court of Québec (Civil Division) through accountant Micheline Coutu, his agent, within the time limit prescribed in section 93.1.13., which time limit also expired on June 26, 2001.
12. Specifically, through accountant Micheline Coutu, his agent, the applicant filed with the Minister a notice of appeal from the decision concerning the notice of reassessment referred to in paragraph 1 of this reply and from the decision concerning the notice of reassessment made under the Act respecting the Québec sales tax only on July 3, 2001, that is, the 97th day after the day on which the notice of confirmation of reassessments was mailed.
13. On July 31, 2001, the applicant applied to this Court for an extension of time to appeal.
These facts are not contested.
In fact, the notice of appeal written by Micheline Coutu and dated June 27, 2001, reads as follows:
[TRANSLATION]
Subject: Appeal from decision No. 156085 and 156086
To whom it may concern:
I wish to appeal from the decision of which a copy is attached hereto.
[3] The decision of which a copy is attached to that notice of appeal is in fact a notice of confirmation of reassessment, not a notice of reassessment.
[4] A letter from the applicant dated July 27, 2001, and received by the Court on July 31, 2001, states:
[TRANSLATION]
Please note that, further to your letter of June 29, 2001, we wish to apply for an extension of time because we mailed our application on June 27, 2001, believing that we had until June 30, 2001. I believed I had 90 days after the day the reassessment was received.
[5] Only Micheline Coutu, who presented herself as an accountant and the agent for the applicant, testified. She acknowledged that she had been late, not only with respect to the notice of appeal, but also with respect to the notice of objection. From her explanations, I understand that she was unaware of the time limits to object and to appeal, or at least that she was not aware of the rules for computing the time limits. She also stated that she had been ill for one week.
[6] Counsel for the respondent argued that the application should be dismissed on the ground that none of the requirements set out in paragraph 305(5)(b) of the Act have been met. Specifically, she argued that neither the notice of appeal nor the application for an extension of time make it possible to determine whether there are reasonable grounds for the appeal. She referred to the decision in Henry v. the Queen, 98 GTC 2198, in which the Court stated that it could only grant an application if all the requirements of section 305 were met. Counsel for the respondent also relied on the Federal Court of Canada-Trial Division-decision in M.N.R. v. Desgagné, 2001 DTC 5469, in arguing that the application should be dismissed.
[7] Subsection 305(5) of the Act reads as follows:
305.(5) When order to be made
No order shall be made under this section unless
(a) the application is made within one year after the expiration of the time otherwise limited by this Part for appealing; and
(b) the person demonstrates that
(i) within the time otherwise limited by this Part for appealing,
(A) the person was unable to act or to give a mandate to act in the person's name, or
(B) the person had a bona fide intention to appeal,
(ii) given the reasons set out in the application and the circumstances of the case, it would be just and equitable to grant the application,
(iii) the application was made as soon as circumstances permitted it to be made, and
(iv) there are reasonable grounds for appealing from the assessment.
[8] A reading of this subsection makes it clear that all the requirements must be met. The requirement set out in paragraph 305(5)(a) has evidently been met, as has the one in 305(b)(i), since the notice of appeal is dated June 27, 2001. As for the requirement set out in subparagraph 305(5)(b)(iii), it does not present any difficulty in this case. With respect to the requirement set out in subparagraph 305(5)(b)(ii), the explanation given was an error in computing the time limit to appeal. If I were satisfied that the delay was not the result of any negligence by the agent for the applicant, I would conclude that it is just and equitable to grant the application. However, there is no evidence that allows me to state that there are reasonable grounds for the appeal, and thus it is clear that the requirement in subparagraph 305(5)(b)(iv) has not been met. First of all, the notice of appeal refers only to the attached notice of confirmation, not to the reassessment itself. More importantly, however, is the fact that in this brief notice, there is not only no summary of the reasons for and relevant facts of the appeal but also no other elements whatsoever.
[9] When persons present themselves as accountants and claim to represent taxpayers before the Tax Court of Canada, something that is allowed under the statutory provisions governing the informal procedure,[1] they must agree to fulfill the obligations of that mandate with a minimum of professionalism and competence; otherwise they are liable to action by taxpayers who may be deprived of their rights.
[10] In this case, I consider that the notice of appeal does not meet the minimum standards that would make it possible to state that there are reasonable grounds for the appeal. The application for an extension of time does not remedy this situation.
[11] The application for an extension of time to appeal is accordingly dismissed.
Signed at Ottawa, Canada, this 28th day of January 2002.
|
"P. R. Dussault" |
J.T.C.C.
Translation certified true
on this 6th day of May 2003.
Sophie Debbané, Revisor
[1] See sections 18.14, 18.3001 and 18.302 of the Tax Court of Canada Act, R.S.C. 1985, c. T-2, as amended.